A lecture note on the as the usual way to start an action in the High Court.
A Writ of Summons is a formal document representing the complaints of the issues under the name of the name of the Head of State. It is a notice which commands the addressee to appear before the High Court within a specified period. It is issued by the plaintiff but out of the registry of the court. It marks the commencement of an action or proceedings in a court of law. So because the writ is issued out of the registry, it is a command that emanates from the court and the court has the authority to command you from the constitution of Sierra Leone. So failure to attend is not only a neglect to the person who took out the writ but disrespect to the court that issued it and the State. Every writ of summons before it is issued must be indorsed with a statement of claim and the relief or remedy required in an action.
The writ states the name and address of the plaintiff and the name and usual or last known address of the (s) and it must be endorsed either with a full “statement of claim” or with a short indication of the general nature of the claim. The former is a specially endorsed writ and the latter is a generally endorsed writ but these expressions no longer appear in the rules. The party intending to sue must also ensure that he has a title to sue and that the person he intends to sue is a proper defendant to his action, e.g bringing an action against a certified agent instead of the principal. Again a party wishing to sue must ensure that he brings his action in time as per the provision of the Limitation Act No. 51 of 1961 and not sue prematurely.
ORDER 6
Rule 1
Every writ of summons must be in an appropriate form and must be indorsed with the statement of claim, relief or remedy sought. The addresses of the parties must be stated and not necessarily that of the solicitors.
Rule 2
The ground of complaint and relief sought need not be precise at this stage but in the case of Pontin v Wood, an endorsement which read “the plaintiff’s claim is for damages for personal injuries”, was considered defective because it lacks sufficient particularity. Nonetheless, the court of appeal held that the defect could be cured by subsequent delivery of a proper statement of claim.
There are two types of writs, a generally endorsed writ and a specially endorsed writ. A generally endorsed writ does not necessarily state the precise ground of the complaint or the remedy or relief sought. Specially endorsed writ on the other hand is an extension of the generally endorsed writ; it sets out the precise ground of complaint, remedy or relief and the Statement of Claim and Particulars of Claim.
Rule 3
The Plaintiff is at liberty (may) use a specially or generally endorsed writ to commence any action for the recovery of liquidated demand or debt payable by the defendant with or without interest for any action in the high court that could be begun by writ but for actions with regards “, slander, malicious prosecutions, seduction, breach of promise of marriage and actions in which fraud is alleged by the plaintiff”.
Rule 4
Before a writ is issued, it shall be endorsed:
- Where the plaintiff sues in a representative capacity, with statement of the capacity in which he sues e.g. the plaintiff sue as executor of the will of Mohammed Bangura, or the defendants are used as trustees of the estate of Mohamed Bangura.
- In actions (matters concerning wills), the plaintiff must show in what capacity he is claiming whether as creditor, executor, administrator, residuary legatee, devisee, next of kin etc.
Rule 5
Writ must be endorsed with the address of the plaintiff and this must not be more than 5 miles from the Master’s office. Where he sues by a solicitor, the name and address of the solicitor or firm must be endorsed. E.g.
This wit was issued by Conteh and Associates of Areopagus Chambers of an
whose address for service is 10 Oleander Street Freetown Solicitors for the Plaintiff who reside at N349 LOW COST HOUSING, KISSY, FREETOWN aforesaid.
If the plaintiff has no place of residence, he must provide an address that is within 7 mile radius for the writ to be delivered or sent.
2. Where a solicitor’s names is endorsed on a writ, a defendant who has been served with such a writ or has entered appearance may request for written confirmation from the solicitor as to whether the writ was issued by him or with his authority or privity.
3. Where the solicitor declares in writing that he is not a party to the writ, the court may on the application of the defendant to stay all proceedings in that action.
Rule 6
Before a writ if filed by a plaintiff, it shall be endorsed:
a. With a statement of claim or with a concise statement of the nature of claim made or the relief or remedy sought.
b. Where the claim made is for debt or liquidated demand only, with statement of the amount claimed and for costs. Also, with a statement that further proceedings will be stayed if within the time limited for appearance, the defendant pays the debt or amount to the plaintiff, his solicitor or agent.
Rule 7
1. Every writ of summons shall be issued out of the Master’s office or a District Registry and shall be signed and sealed by the Master or District Registrar and shall thereupon deemed to be issued.
2. The Writ shall bear on it the date it was issued.
Rule 8
For a writ of summons to be served out of the of the High Court of Sierra Leone, it must be done so with the leave of the Court or a Judge.
Rule 9
At the plaintiff request, one or more concurrent writs may be issued at the time the original writ issued or at any later time after the original writ is issued but before it ceases to be valid.
A writ of service within the jurisdiction may be issued as a concurrent writ with a writ, notice of which is to be served out of the jurisdiction may be issued as a concurrent writ with one of service within the jurisdiction.
A concurrent writ is a true copy of the original writ with such difference, any, as are necessary having regard to the purpose for which the writ is issued.
The concurrent writ shall be sealed by being marked “concurrent” with an official stamp and the date on which it is issued.
Rule 10
1. A writ other than a concurrent writ shall be valid in the first instance for a period of 12 months from the date of issue and a concurrent writ shall have the same validity as the original writ (meaning when the original writ expires the concurrent does also). In Trow v Indcoope (west midlands), writ issued on 10th September 1965 was held to have expired on 10th September 1966.
2. The court may by order extend the valid of the writ which has not been served on the defendant for a period that he may be specified in the order but not exceeding 12 months.
3. Application to such extension must be supported by an showing all circumstances relied on, including the date of issue of the original affidavit, or date of renewal and explanation as to why it has not been served.
Renewal of an original wit has the effect of renewing all concurrent writs previously issued without their being brought to the office of the master to be marked “renewed”. And a renewal of a concurrent writ renews in like manner, the original and any other concurrent writs previously issued. This, it an original writ is renewed in Sierra Leone while a concurrent writ is abroad and vice versa. Where the plaintiff has neglected to keep the action alive by renewal in proper time, a concurrent writ cannot be issued by order. In Bernstien and Other v Jackson and Others, the Court held that “Failure to renew a writ is a fundamental defect in the proceedings and not a mere technicality, a slip or mistaken step in litigation. The writ was set aside for want of renewal as provided for by the rules”. Renewal of writ which was partly and not fully executed requires renewal after one year – U.A.C of S.L Ltd v Macfoy 1964 – 66 SL 383 per Bankole Jones In the case of Hill v Luton Corporation 1951 2 KB 387, the Devlin J held that “if a writ is void ab ignition, nothing can cure it and all that follows is as nothing: but once it is conceded that the defect in a writ can be cured that which is to be cured by delivery of a statement of claim. It’s implicit in a claim of personal injuries that the injuries are inflicted by the defendant. The lack of particularity is capable of being remedied”
In the case of Heaven v Road & Rail Wagon Ltd, Megaw J, held that reasons which could have prevented the defendant from pleading the Limitation Act No. 51 of 1961 are not sufficient grounds for renewal.
e.g (a) that the failure in time was mere technical slip
(b) That the defendants were ware of the issue of the writs
(c) That the delay is just a minimal one month etc is untenable.
FORMAT
Sierra Leone cc (civil case) 201 is the number and then year (17) and the year again 2017 followed by the initials of the surname of the plaintiff (C) and the case number that have been filed under the surname. The case number for the case and for the number for the initials is given by the court registry when you file your writ. If it is a company you use the first letter of the company’s name as initials. For e.g. Airtel SL Ltd you use A as the initials for the company.
Next you have the heading (IN THE HIGH COURT OF SIERRA LEONE) and underneath the heading is the division of the court you are making the application to (GENERAL CIVIL DIVISION). The heading and the division should be in capital letters. The LS means legal seal. Then you have the parties to the action. The complainant is called the plaintiff and the person who the action is brought against is called the defendant.
Next you have the statement of claim.
SPECIALLY ENDORSED WRIT SAMPLE
C.C. 67/10 2010 M. NO. 2
SIERRA LEONE
(TO WIT)
IN THE HIGH COURT OF SIERRA LEONE
LAND AND PROPERTY DIVISION
BETWEEN:-
BETWEEN
[NAME] [ADDRESS] FREETOWN - Plaintiff AND [NAME] [ADDRESS] FREETOWN - Defendant By His Excellency the President of the Republic, Supreme Head of State, Grand Commander of the Order of the Republic, Commander-in-Chief of the Armed Forces, Fountain Head of Unity, Honour, Freedom and Justice TO: - DEFENDANT [ADDRESS] FREETOWN We command you that within 14 days after the Service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the High Court of Sierra Leone in an Action at the Suit of PLAINTIFF [ADDRESS] FREETOWN And take notice that in default of your so doing the Plaintiff may precede therein, and judgment may be given in your absence.
WITNESS THE HONOURABLE MR. JUSTICE ABDULIA CHARM, Chief Justice of Sierra Leone at Freetown the 24th day of FEBRUARY in the year of our Lord, 2010 Master and Registrar N. S. - This Writ is to be served within twelve calendar months from the date thereof, or if renewed, within six calendar months from the date of the renewal, including the day of such date, and not afterwards. The Defendant may appear hereto by entering an Appearance either personally or by Solicitor at the Master’s Office, High Court of Sierra Leone.
A Defendant appearing personally may if he/she desire, enter his/her appearance by post and appropriate forms may be obtained by sending a postal order for Le 300.00 with an addressed envelope, foolscap size, to the Master and Registrar, High Court, Freetown.
If the Defendant enter an appearance he must also deliver a defence within ten (10) days from the last day of the time limited for appearance unless such time is extended by the Court or Judge, otherwise Judgment may be entered against him without notice, unless he has in the meantime been served with a for Judgment.
STATEMENT OF CLAIM
The Plaintiff’s claim against the Defendant is for the following:- A Declaration by this Honourable Court that the Plaintiff is the and/or person well and sufficiently entitled to possession of all that piece or parcel of land and premises situate, lying and known as No. 51 Sanders Street, Freetown in the Western Area of the Republic of Sierra Leone.
Any further reliefs that this Honourable Court may consider in the interest of justice.
Costs.
PARTICULARS OF CLAIM
The Plaintiff is currently in the United States of America and at all material times the lawful to the exclusion of all others, of the estate of the Decker family situates, lying and known as 51 Sanders Street, Freetown.
As a result, the Plaintiff has suffered severe loss and embarrassment and therefore deprived from having any dealing and/or bearing with the said property.
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And the sum of Le……….. for costs or such sum as may be allowed on taxation and if the amount claimed be paid to the Plaintiffs or their solicitors within …………days from service hereof further proceedings will be stayed.
WHEREFORE THE PLAINTIFF CLAIMS
A Declaration by this Honourable Court that the Plaintiff is the fee simple owner and/or person well and sufficiently entitled to possession of all that piece or parcel of land and premises situate, lying and known as No. 51 Sanders Street, Freetown in the Western Area of the Republic of Sierra Leone.
Recovery of possession of the property hereinbefore mentioned by the Plaintiff.
A perpetual against the Defendant, restraining himself, his privies, agents and assigns from occupying and/or in anyway whatsoever interfering or dealing with the aforesaid property.
An Order by this Honourable Court, that all rent collected by the Defendant (or any person acting through him) from all tenants or any third party whatsoever be handed to the Plaintiff.
An Order for cancellation of granted by the Probate Jurisdiction of the High Court to the Defendant on 20thFebruary 2009, in respect of the said property at No. 51 Sanders Street, Freetown purportedly falling under the estate of Nancy Tunde Jones (Nee Decker).
Any further reliefs that this Honourable Court may consider in the interest of justice.
Costs.
……………………………… C O U N S E L This Writ was issued by SOLOMON JAMIRU & CO. of and whose address for Service is, 1ST FLOOR NO. 2 CAMPBELL STREET, Freetown Solicitors for the Plaintiff who reside at N349 LOW COST HOUSING, KISSY, FREETOWN aforesaid.
……………………………………… SOLOMON A.J JAMIRU PLAINTIFF’S SOLICITOR C.C: 67 /10 2010 M. NO. IN THE HIGH COURT OF SIERRA LEONE (LAND & PROPERTY DIVISION)
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BETWEEN:-
BETWEEN
[NAME] [ADDRESS] FREETOWN - Plaintiff AND [NAME] [ADDRESS] FREETOWN - Defendant WRIT OF SUMMONS SOLOMON JAMIRU & CO.
1ST FLOOR 2 CAMPBELL STREET FREETOWN PLAINTIFF’S SOLICITORS GENERALLY ENDORSED WRIT SAMPLE C.C. 67/10 2010 M. NO. 2 SIERRA LEONE (TO WIT)
IN THE HIGH COURT OF SIERRA LEONE
LAND AND PROPERTY DIVISION
BETWEEN:-
BETWEEN
[NAME] [ADDRESS] FREETOWN - Plaintiff AND [NAME] [ADDRESS] FREETOWN - Defendant By His Excellency the President of the Republic, Supreme Head of State, Grand Commander of the Order of the Republic, Commander-in-Chief of the Armed Forces, Fountain Head of Unity, Honour, Freedom and Justice TO: - DEFENDANT [ADDRESS] FREETOWN We command you that within 14 days after the Service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the High Court of Sierra Leone in an Action at the Suit of PLAINTIFF [ADDRESS] FREETOWN And take notice that in default of your so doing the Plaintiff may precede therein, and judgment may be given in your absence.
WITNESS THE HONOURABLE MR. JUSTICE ABDULIA CHARM, Chief Justice of Sierra Leone at Freetown the 24th day of FEBRUARY in the year of our Lord, 2010 Master and Registrar N. S. - This Writ is to be served within twelve calendar months from the date thereof, or if renewed, within six calendar months from the date of the renewal, including the day of such date, and not afterwards. The Defendant may appear hereto by entering an Appearance either personally or by Solicitor at the Master’s Office, High Court of Sierra Leone.
A Defendant appearing personally may if he/she desire, enter his/her appearance by post and appropriate forms may be obtained by sending a postal order for Le 300.00 with an addressed envelope, foolscap size, to the Master and Registrar, High Court, Freetown.
If the Defendant enter an appearance he must also deliver a defence within ten (10) days from the last day of the time limited for appearance unless such time is extended by the Court or Judge, otherwise Judgment may be entered against him without notice, unless he has in the meantime been served with a Summons for Judgment.
C.C: 67 /10 2010 M. NO.
IN THE HIGH COURT OF SIERRA LEONE
LAND AND PROPERTY DIVISION
BETWEEN:-
BETWEEN
[NAME] [ADDRESS] FREETOWN - Plaintiff AND [NAME] [ADDRESS] FREETOWN - Defendant WRIT OF SUMMONS SOLOMON JAMIRU & CO.
1ST FLOOR 2 CAMPBELL STREET FREETOWN PLAINTIFF’S SOLICITORS